Friday, February 29, 2008

Thou shall not drink on the Sabbath, at least not heavily

Recently, a friend sent me the following e-mail:

"(Another person forwarded me) a petition to let the state of Georgia vote on whether each individual county can sell alcohol on Sunday in stores. So I thought some of you might want to sign it too! Even if you don't drink, not allowing alcohol to be sold on Sunday is imposing some people's religious beliefs on the entire state of Georgia! Hey and it can increase tax revenue too! Anyway thought you might be interested!"

I thank my friend for sending me this, although I shall decline to sign. (Personal to her: while I won't support alcohol sales on Sundays, I favor the Atlanta Falcons winning more games on Sundays. If you have any petitions to that effect, please send them and I will sign at once.)

You can bet that as soon as I got this communication, I started thinking about the constitutional implications. Before I get to those, however, let me address something else I really like: animals. The friend who forwarded me the petition is someone I know through both of our involvement in the field of animal care. It's ironic then, that the Fourth Commandment, source of the notion of Sunday as a day of rest, can be viewed as a very early anti-cruelty statute. Look at the text of Exodus 20: 8-10:

"Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: but the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates..."

The emphasis is mine, of course. (My Bible is highlighted in two ways: the words of Christ are in red, courtesy of the publisher, and references to animals are underlined, courtesy of me.)

I doubt there are any cattle out there who care if you personally keep the sabbath holy or not. But there is no question that having a day of rest is beneficial for an animal that labors hard pulling a plow.

It's easy for us in industrial America to forget how recent in human history is the process of doing work by machine rather than by domestic livestock, and that many in developing nations still depend on an ox, an ass, or a water buffalo. And it's interesting to note that in the horse and buggy days of 1816, when Congress debated whether to cease transportation of mail on Sundays, New York Representative James Tallmadge of New York argued in favor of such an act by asserting:

"The cessation of labor through one day out of seven, serves greatly to relieve and refresh both man and beast, and thus to fit them more effectually to perform the duties of the ensuing week." (29 Annals of Congress at 1123, again my emphasis.)

If you don't work, your creatures can't. That cuts down on seriously overworking beasts of burden.

Okay, now to the constitutional matter. Without directly mentioning the First Amendment's prohibition of governmental establishment of religion, my friend seems to be invoking this provision as an argument against Sunday liquor sales.

There's a bit of an oddity here, in that it's challenging to argue that the First Amendment negates keeping Sundays dry, when for fourteen years from 1919 to 1933 the Eighteenth Amendment mandated that all seven days of the week must be alcohol-free. Fine, that Amendment was repealed. Still, it's instructive to consider a little of the history that led this country to a total ban on liquor as opposed to what we're talking about here, simply not selling booze on Sundays.

Prohibition was championed by the Anti-Saloon League, founded in the late nineteenth century; as legal historian Lawrence M. Friedman notes: "The league had strong allies among American Protestant churches" (American Law in the 20th Century, 2002, p. 102). Friedman also characterizes the movement as "a crusade led by small-town, solid, respectable Protestant worthies," p. 105.

So it seems many supported Prohibition for religious reasons. (For a list of over a dozen Biblical references to the evils of alcohol, see But no one in this country is denied the power to support or oppose legislation for reasons of faith; those Christians a century ago had as much right to attempt a ban on alcohol for religious convictions as their grandparents had opposing slavery as an abomination before God. While I disagree with Justice Scalia's dissent in Edwards v. Aguillard, 482 U.S. 578, 610, (1987), a case involving teaching of creation in public schools, I think he was definitely on the right track when he wrote: "We surely would not strike down a law providing money to feed the hungry or shelter the homeless if it could be demonstrated that, but for the religious beliefs of the legislators, the funds would not have been approved," Edwards at 615.

Okay, that's an argument about the past. We may laugh about preachers of yesteryear preaching temperance, but what about today? Is it acceptable to ban liquor sales on Sundays without running afoul of the standard interpretations of the First Amendment and its disallowance of establishment of religion?

Yes, said the Supreme Court in the 1961 case of McGowan v. Maryland, 366 U.S. 420. In that case, seven department store employees were "indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of (Maryland's blue laws, which) prohibited, throughout the State, the Sunday sale of (most)merchandise," McGowan at 422-23. Notice that we're not talking about beer here; the McGowan Seven got in trouble for selling floor wax on Sunday, for Pete's sakes. The Anti-Saloon League has been consigned to history; I doubt we'll ever see an Anti-Floor Wax League trying to accomplish similar ends.

For Chief Justice Warren, writing for the eight to one majority, there was no violation of the Establishment clause. While acknowledging that Sunday closing laws had a sectarian origin, he asserted that by the late twentieth century this was no longer the case:

"In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that, as presently written and administered, most of them, at least, are of a secular, rather than of a religious, character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States. . . Numerous laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, weekend diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare, rather than one of mere separation of church and State," McGowan at 444-445.

Only Justice William Douglas dissented. He was troubled less by the laying aside of Sunday as a day of rest than he was that criminal sanctions were imposed on those who did not comply, McGowan at 561.

One might protest that McGowan was decided nearly a half century ago and it was therefore product of an earlier view of the nexus between church and government that is not necessarily shared today. But consider this: virtually the same court that declared blue laws did not violate the establishment clause ruled over the following two years that prayer and Bible reading in public schools did run afoul of that Constitutional provision, Engel v. Vitale 370 U.S. 421 (1962) and Abington School District v. Schempp 374 U.S. 203 (1963). Five of the Justices who said yea to blue laws also said nay to prayer and Bibles in public schools (the five were Warren, Black, Clark, Harlan, and Brennen; two others from the McGowan majority--Frankfurter and Whittaker--were gone from the court when Engel and Schempp were decided).

So basically the same group of men who said you could face criminal charges for selling floor wax on Sundays also said public school children couldn't recite the Lord's Prayer Monday through Friday. Whether you agree with them or not in the school prayer cases--and Lord knows, there are a lot of people to this date who regret those decisions--it's pretty obvious that the early sixties Court wasn't composed of personnel who went out of their way to allow Christian principles to creep into government policy. They've been slammed mostly for going too hard in the other direction. (See The Court and the Constitution by Archibald Cox, 1987, pp. 200-202.)

Bringing us back to the here and now, I can't see what harm is done by keeping the cash registers shut at package stores in Atlanta on Sundays. Given that a lot of people are killed and maimed by drunk drivers, that children are beaten by alcoholic mothers or fathers, and that even responsible people can quickly become boorish slobs after a few shots, I think having one day dry might be valuable to remind folks of the high cost of alcohol abuse.

Tuesday, February 19, 2008

The worst presidents ever. Okay, maybe not the worst, but I really hate them anyway...

It's become a holiday ritual as ubiquitous as decorating trees at Christmas or eating more than on Thnksgiving than most folks in Somalia eat in two months. I speak of the President's Day tradition of people coming out with their lists of the best, or worst occupants of the White House. I swear, if I ever get famous enough that I'm asked in mid-February who was the greatest Chief Executive, I will confidently exclaim "William Henry Harrison; he died thirty-one days into his term. Let's give him credit for setting a precedent which, had a few other Presidents followed, the country would have been better off."

Seldom, however, have I read a best or worst Presidents article that gave me more of a double take than this one, from the American Thinker, written by Ari Kaufman:

I have little to say about two of his three selections, Jimmy Carter and James (Don't Call Me Pat) Buchanan. The interesting thing about living in Georgia is that I don't have to go far to find folks who still assert Carter was a reasonably good President, nor do I need to organize a search party to locate citizens who say, "Never mind Buchanan; that tall guy with the beard who followed him was a war criminal!"

But I do have something to say about Mr. Kaufman's disgust with Lyndon Johnson. In attempting to paint LBJ as a bigot, Kaufman does not mention that Johnson was the first President to nominate an African-American (Thurgood Marshall) to the Supreme Court. Nor does Kaufman take note of Johnson's stirring speech to Congress in 1965, emphatically supporting passage of the Voting Rights Act, an oration so inspiring that Martin Luther King-- who could give a pretty good speech himself--is reported to have been so touched by that he wept (Robert Torricelli and Andrew Carroll, eds. In Our Own Words: Extraordinary Speeches of the American Century, 1999, p. 265).

I'm not disturbed that Kaufman doesn't mention these things; after all, when one is writing an essay to convince others of the merits of his position, he is certainly not obligated to raise points that don't support his thesis.

But here is the bit from his essay I do object to:

"LBJ and the Southern wing of the Democratic Party persisted in supporting anti-black positions. Consider, as LBJ's term neared:
- In 1956, Democrats expressed their opposition to the desegregation decision of Brown v. Board of Education in the "Southern Manifesto." One hundred members of Congress, all Democrats, signed the manifesto."

Okay, if you read that, what do you logically infer? I think you would get the impression that among those awful one hundred members of Congress, one of them was Lyndon Baines Johnson.

As a matter of fact, nineteen of the twenty-two senators representing the states of the old Confederacy signed the manifesto. Three didn't. Two were the Tennessee senators, Estes Kefauver and Al Gore's daddie. The other one who withheld his signature was Lyndon Johnson ( James T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy, 2001, p. 98).

I don't wish to argue that Kefauver, Gore Sr., and LBJ deserve sainthood for their refusal to endorse the Manifesto. In fact, in the Patterson book cited above, the author declares that the trio acted out of political expediency, as all dreamed of prominence on the national political stage and association with the manifesto would interfere with these goals. (This is a digression, but Patterson himself lets go of a laugher when he writes "All three had presidential or vice-presidential ambitions that they knew would suffer if they became too closely identified with southern racist opinion," p. 98-99. I honestly didn't know any US senators had vice-presidential ambitions.)

Anyway, since LBJ didn't sign the foul document, it's rather obivous that Kaufman has attempted a bit of slight of hand here. In the right hand he shows you the Southern Manifesto, in the left hand he shows you LBJ the bigot, and presto! The two are one. David Copperfield would be proud.

Kaufman's piece, as I mentioned, appears in The American Thinker. Here's hoping enough American thinkers will recognize that its author is being a bit cavalier with the facts.

Monday, February 18, 2008

Tucker and theocratic tendencies

"(Mike) Huckabee's theocratic tendencies are dangerous, and he shouldn't be on any ticket, even as vice president." --Cynthia Tucker, Atlanta Journal-Constitution, February 18, 2008.

"Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. --The United States Constitution, Article VI (emphasis mine).

In the same editorial, Tucker refers to Josiah Bartlet of "West Wing," as "My favorite president ever." Maybe I haven't won a Pulitzer Prize as Cynthia has, but I think if you're writing a serious piece in which your goal is to convince people that Mike Huckabee is unfit to be the Vice President of the United States, you lose a bit of credibility by declaring your favorite president to be a fictional character. By the way, shouldn't everybody in the media, when asked to name her preferred Chief Executive, answer "James Madison"? After all, freedom of the press is guaranteed by the First Amendment he drafted.

Tucker calls Huckabee "a country preacher." This raises the question--not brought up in the editorial--could Huckabee Constitutionally be disqualified from holding public office because he's a member of the clergy? That's not exactly covered by Article VI, as one can hold strong views on faith without being ordained.

Where the history of denying clergy the ability to run for public office is concerned, I recommend a reading of the Supreme Court's decision in McDaniel v. Paty, 435 U. S. 618 (1978).

In brief: the Court noted that seven of the original thirteen states--Maryland, Virginia, North Carolina, South Carolina, Georgia, New York, and Delaware--disqualified clergy from elected office, McDaniel at 622. An outspoken opponent of this practice was James Madison, Id. at 623-624. Yes--the same James Madison whose First Amendment prevented an establishment of religion, guaranteed free exercise of faith, and promised that future Cynthia Tuckers could write with impunity that someone shouldn't be elected because of his faith.

Madison's opinion gradually carried the day, or as Justice Brennen in his McDaniel concurrence stated:

"When, with the adoption of the Fourteenth Amendment, the strictures of the First Amendment became wholly applicable to the States... earlier conceptions of permissible state action with respect to religion -- including those regarding clergy disqualification -- were superseded." Id. at 637.

Let me conclude with one other point Tucker raises. It's not related to the religious issue strictly, but it's a Constitutional point I'm obliged to address given the title of my blog. Tucker blasts Huckabee as a potential VP candidate because he supports a constitutional amendment banning gay marriage. I presume that Tucker has noticed that George W. Bush, the man who actually holds a post a spot higher in our government than the one she hypothetically posits for Huckabee, has also supported altering the Constitution to define marriage as between one man and one woman.

And we're no closer to it happening. Whenever anybody talks about amending the Constitution, whether it's President Bush or the loudmouth guy in the local tavern, remember: it takes a whole lot of people to do this. Two-thirds of both houses of Congress have to sign on, then three-quarters of the states, see Article V. That's why I don't get too worked up about any candidate for anything talking about Constitutional amendments, because usually we don't get them, and when we do, they are as clear an expression of the will of the people as we're ever likely to see.

Thursday, February 14, 2008

Berkeley part 2: South Dakota v. Dole

Lat night on The O'Reilly Factor, Bill O'Reilly had a spirited argument with his network's legal analyst, Judge Andrew Napolitano. The Judge made clear that he did not condone the City of Berkeley's actions trying to kick the Marines out of town, but he objected to the idea of Congress withholding federal funds from Berkeley in response to the action. This, the Judge asserted, would constitute an infringment on the Berkeley Council's free speech rights.

There is certainly a good deal of merit in Napolitano's thoughts, given that in our democracy we prize freedom of speech over almost any other value of liberty. As Oliver Wendell Holmes wrote almost ninety years ago:

"(The Constitution) is an experiment, as all life is an experiment... While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

With that in mind, I still have no objection to Congress denying funds to Berkeley. I think a notable precedent here is South Dakota v. Dole, 483 U.S. 203 (1987), in which the Court refused to invalidate Congressional legislation withholding five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age. South Dakota challenged the law, arguing that both the powers reserved by the states in the Tenth Amendment, and the state and local authority over liquor acknowledged in Section 2 of the Twenty-first Amendment were violated by Congress's action (Dole at 205, 210). The challenge was unsuccessful; the Court sided with Congress.

While South Dakota may have been putting its share of the highway funds in peril by having a drinking age of eighteen, the state was not directly attempting to prevent the federal government from exercising an enumerated power. That is, however, exactly what the Berkeley City Council is trying to do by forcing the USMC recruiting center out of their town. As I mentioned in my previous post, Article I, Section 8 of the Constitution expressly gives the federal government power to raise military forces; maintaining recruiting centers is quite clearly a necessary and proper means to do so.

Free speech gives the Berkeley politicians the right to criticize the Marines, or the war, or the President and Congress responsible for the war. They can even draft resolutions denouncing the
process of military recruitment if they want. They just can't tell a unit of the federal government that it must leave town, and if they try, I see no reason Congress can't respond by closing its purse.

Saturday, February 9, 2008

The Constitution and Berkeley

Much has been written and said this past week on the actions of the Berkeley, California City Council essentially telling the Marines to get out of Dodge by sundown. Here's an article if you need a refresher:

I have three points related to the Constitution I'd like to make about this matter:

1. I sometimes think that the most profound comment uttered by any of the delegates to the Constitutional Convention of 1787 was one made by Pennsylvania's James Wilson on June 16th. As described in James Madison's notes, Wilson took the floor to remark that: "With regard to the sentiments of the people, he conceived it difficult to know precisely what they are. Those of the particular circle in which one moved were commonly mistaken for the general voice." (Emphasis mine).

What does this have to do with the goings on in Berkeley? Take a look at a recent column by Michelle Malkin:,_again

Malkin notes that the action in Berkeley aroused the ire of Move America Forward, the American Legion, South Carolina Senator DeMint, and others, then she writes:

"After feeling the heat, not just from veterans, military families and troop supporters outside of Berkeley but also from their own embarrassed citizens, the council is waving a partial white flag: Two council members will move to rescind the obnoxious letter and Code Pink privileges next week. It seems a little light bulb went off in Councilwoman Betty Olds' head: 'I think we shouldn't be seen across the country as hating the Marines.'"

When a citizen in Berkeley speaks to a neighbor at the local Starbucks, who is he probably conversing with? Another person with almost the exact viewpoint on many issues, that's who. Many--perhaps even most--of the people who live in Berkeley have similar opinions to their town council, but these aren't necessarily shared by the people in North Dakota or South Carolina. It's like after the 2004 Presidential election I heard some otherwise intelligent people making comments such as "How could John Kerry have lost? Every sign I saw on lawns in Midtown Atlanta was for Kerry; I didn't see a single one for Bush." Of course, if only homosexuals from Atlanta, actors from Los Angeles, and Unitarians from Boston could vote, Kerry would have won with about 95% of the vote. But Kerry and Bush were running to be President of all Americans, not President of select demographic groups.

The people in Berkeley caught off guard by how much negative commentary has been directed towards their town simply forgot what I like to call James Wilson's dictum. They mistook the sentiments of the particular circle in which they moved for the general voice.

2. One of the wonderful things about reading history books is that quite often something will occur in contemporary America that relates to whatever volume you're perusing at the moment. I happen to be reading Geoffrey R. Stone's Perilous Times: Free Speech in Wartime (2004); right now I'm on the chapter about the appalling suspensions of civil liberties that took place during World War I. It is truly jolting to learn, for instance, that Rose Pastor Stokes, editor of the Jewish Daily News, was convicted and sentenced to ten years in prison for saying "I am for the people and the government is for the profiteers" at a meeting of the Women's Dining Club of Kansas City. (See pp. 171-72; fortunately, her conviction was overturned on appeal, n. 143 p. 593.)

I don't approve of many of Code Pink's present day activities, but thank goodness we now live in an America where the First Amendment isn't just marks on paper and mere expression of disapproval of the war isn't grounds for arrest. Of course, protestors have an obligation to keep it civil; I think one should at least face misdemeanor charges for thrusting blood stained hands in the Secretary of State's face:

And in the specific case of Berkeley and the Marines, I don't think putting imprints of bloody hands on Saran wrap and taping it to the recrutment center's window is acceptable conduct:

So to sum up: I say no to women in 1918 being sentenced to a decade in prison for making antiwar statements, and I also say no to women in 2008 thrusting bloody hands in faces or pasting them to storefront windows. Society has a hard time finding an acceptable middle ground sometimes, doesn't it?

3. I haven't seen anything written on this, but it's pretty obvious to me that what the Berkeley City Council did was unconstitutional. Article 1 § 8 of the Constitution grants Congress the power to raise military forces and to use means necessary and proper to staff the troops. It's rather difficult to see how this could be done without having recruiting centers. Never mind whether the Marines can recruit a voluntary force, the Supreme Court in 1918 unanimously upheld federal authority to hold a draft, see Selective Draft Cases, 245 U.S. 366. What the heck, the following year the Court without dissent even ruled that the feds could shut down brothels near military bases as a necessary and proper exercise of the military powers, see McKinley v. U.S. 249 U.S. 397 (1919). (So that's why some young men who could have used family connections to remain stateside during the Vietnam War chose to go to IndoChina instead...)

And remember: a power specifically granted to Congress, the President, or the federal courts may NOT be interfered with by a state or local government. We've got almost two hundred years of precedent on this, going back to Justice Marshall's famous opinion in McCulloch v. Maryland, denying Maryland the power to tax the Second Bank of the United States. Argued Marshall:

"If we apply the principle for which the State of Maryland contends, to the Constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the Government, and of prostrating it at the foot of the States. The American people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this principle would transfer the supremacy, in fact, to the States." 17 U.S. (4 Wheat.) 316, 432 (1819).

Clearly what the Berkeley City Council intended to do was just that, prostrate at their feet the federal military power. Thanks to numerous voices raised in protest, it seems likely they won't get away with it.

I love it when the Constitution wins.

Tuesday, February 5, 2008

Super books for Super Tuesday

Georgia is one of the many states holding a Presidential primary today. I just got back from casting my vote, and it occurred to me that this is a fine time to recommend a couple of books on the history of the vote in America. One is The Right to Vote: The Contested History of Democracy in the United States by Alexander Keyssar, first published in 2000. When it was reissued in paper, a new afterward was added in which Keyssar tackled the electoral college and how that Constitutional provision played out so controversially in the 2000 Presidential election.

This is one of those books that having read several years ago, I realize that at some point I'll have to read it again, so fascinating and important is the story it tells. While the main text is interesting, the charts and tables in the back of the volume alone are a valuable reference worth the purchase price. For example, pages 399-402 list the states and territories that allowed women to vote before passage of the Nineteenth Amendment; this is not easy information to find anywhere else.

Another good little book is Robert M. Goldman's Reconstruction & Black Suffrage: Losing the Vote in Reese & Cruikshank, published in 2001. In 156 pages of text, Goldman chronicles the Supreme Court's regrettable nineteenth century decisions that limited the scope of the Fifteenth Amendment and enabled states to easily deny suffrage to African-Americans by in effect declaring "We're not keeping them from voting because they are black, we are doing it because they are illiterate, or can't pay a poll tax, or can't recite Washington's First Inaugural Address word for word, etc." (That's an exaggeration on reciting Washington's speech, but not by much.) Here's an election day tip of the hat to Thurgood Marshall, Dr. King, LBJ, and everybody else who made sure that nearly a century after the Fifteenth Amendment, it would finally be honored.

Saturday, February 2, 2008

Groundhog Day isn't mentioned in the Constitution....

Zoologist David Barash notes that the groundhog--also called a woodchuck--is the only United States animal to have a day named after it (Marmots: Social Behavior and Ecology, 1989, p. 21). So since I'm posting on Groundhog Day, it seems a good time to point out that no animal other than human beings is mentioned in the Constitution. Not surprising, huh?

Animals would at least have been alluded to, however, had a group of Pennsylvania anti-federalists had their way when the Bill of Rights was debated. These folks from the Keystone State--ironically also the state where our Groundhog Day tradition began--wished for a different wording for the Second Amendment. They desired that it read:

"The people have a right to bear arms for the defence of themselves and their own State, or the United States, or for the purpose of killing game," see Akhil Reed Amar The Bill of Rights: Creation and Reconstruction, 1998, p. 47, emphasis mine.

It sounds a bit like a Jeff Foxworthy routine, doesn't it? I can picture him exclaiming, "If you think the Bill of Rights should include hunting, NASCAR, and Budweiser... you just might be a redneck!"